Court File and Parties

Court File No.: CV-16-114 Date: 2025-10-01 Ontario Superior Court of Justice

Between: Texford St. Bernard, Plaintiff – and – June Andrews, Defendant

Counsel:

• Darrell Paul, Counsel, for the Plaintiff
• Scott McMahon, Counsel, for the Defendant

Heard: In Writing

Before: Justice S. J. Woodley

Decision Regarding Costs After Trial

Overview

The Parties and the Proceeding

[1] The plaintiff, Texford St. Bernard ("Texford"), is the former common law spouse of Connie Andrews ("Connie"). Connie is the daughter of the defendant, June Andrews ("June"), and her late husband, John Andrews ("John").

[2] Texford and Connie lived together from 2001 to 2013 at property and premises owned by June, which are municipally known as 179 Bullis Road.

[3] Following Texford and Connie's separation in 2013, there were family law proceedings commenced between Texford and Connie. There were no claims made in these proceedings relating to 179 Bullis Road.

[4] In September of 2016, Texford commenced the within action claiming unjust enrichment and a beneficial interest in 179 Bullis Road.

[5] At the outset of trial on January 16, 2025, Texford withdrew his claim for much of the relief sought by the Statement of Claim, and limited his claim to the following relief:

i. a declaration that June has been unjustly enriched by improvements made to 179 Bullis Road by Texford, and a further declaration that Texford is entitled to compensation for that enrichment on a quantum meruit basis; and

ii. an order directing an accounting between the parties with respect to the respective contributions to the acquisition, improvement, and maintenance of 179 Bullis Road.

[6] At the close of evidence, Texford further limited his claim to seek repayment of funds allegedly paid by him owed for certain renovations/upgrades for the period 2008 to 2016, including a "contractor's profit margin of 15%", for a total claim of $50,806.41, plus interest and costs and a "further award of $25,000 in the Court's discretion" for a total claim of $75,000.00, plus interest and costs.

[7] By Reasons for Decision dated June 27, 2025, this action was dismissed in its entirety (see St. Bernard v. Andrews, 2025 ONSC 3811), with costs payable to June.

The Nature and Amount of Costs Sought

[8] On July 10, 2025, June filed her Costs Submissions which included a Costs Outline, Bill of Costs detailing the work completed and disbursements incurred together with an Offer to Settle served on July 18, 2024, which offered to dismiss the proceedings on a without costs basis.

[9] June noted that her full indemnity costs are $88,148.62 inclusive. As the Offer to Settle served on July 18, 2024, triggered the operation of Rule 49.10, June requests costs on a substantial indemnity basis from July 18, 2024 ($58,698.75) and partial indemnity basis to July 18, 2024 ($15,330.29) for a total costs award of $74,029.04.

[10] On August 11, 2025, Texford filed his responding Costs Submissions, which included a Costs Outline on a partial indemnity basis.

[11] Texford advised that his partial indemnity costs are $30,485, but made no submissions with respect to the quantum or type of costs sought by June. Instead, by his submissions Texford inappropriately sought to reargue the merits of the case. Somewhat confusingly, Texford argued that because June advised that she was "not aware" of having any "claims against Texford" during cross-examination that he is prejudiced as being "in no position to answer the claim nor would he know what claim he has to face at trial."

[12] The relevant facts are contained in the Reasons for Decision released June 27, 2025, and are not repeated herein except to note that all claims against June were dismissed in their entirety and subject to any offer to settle, June was awarded costs of the proceeding.

The Law and Analysis

Entitlement to Costs

[13] Section 131 of the Courts of Justice Act, R.S.O. 1990, c. C. 43, provides that subject to the provisions of an Act or the rules of court, the costs of an incidental to a proceeding or step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.

[14] The general principle is that a successful party is entitled to costs. It is accepted that this general principle should not be departed from unless there is good cause to do so.

[15] The general principles that apply in fixing costs are set out in Rule 57.01(1) of the Rules of Civil Procedure, R.R.O. 1990 Reg. 194.

[16] Pursuant to Rule 57, in exercising discretion under s. 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle made in writing:

i. the principle of indemnity, including where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged, and the hours spent by that lawyer;

ii. the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;

iii. the amount claimed and the amount recovered in the proceeding;

iv. the apportionment of liability;

v. the importance of the issues;

vi. the conduct of any party that tended to shorten or lengthen unnecessarily the duration of the proceeding;

vii. whether any step in the proceeding was,

• a. improper, vexatious or unnecessary, or
• b. taken through negligence, mistake or excessive caution;

viii. a party's denial or refusal to admit anything that should have been admitted;

ix. whether it is appropriate to award any costs or more than one set of costs; and

x. any other matter relevant to the question of costs.

[17] The fixing of costs is not a mechanical or mathematical exercise and should reflect what the court views as a fair and reasonable amount that should be paid by the unsuccessful party rather than any exact measure of the actual costs to the successful litigant. See: Davies v. Clarington, 2009 ONCA 722; and Zesta Engineering v. Cloutier, 25277.

[18] The overriding consideration is that the amount fixed for costs should be fair and reasonable in all the circumstances and is an amount that the losing party could reasonably have expected to pay if unsuccessful. See: Boucher v. Public Accountants.

[19] I am required to fix costs in all, but exceptional cases. This is not an exceptional case, and I will fix the costs.

Basis for the Award of Costs

[20] June was entirely successful at trial. She was successful not only on the claim that was pleaded for proprietary and declaratory relief, but also on Texford's last minute oral claim for damages.

[21] In addition to her success on the merits, June also beat her rule 49 offer to settle. The trial result is better for June than what June offered to Texford. Specifically on July 18, 2024, June offered by rule 49 that the action be dismissed without costs. Texford did not accept the offer. As a result, there are serious cost consequences to Texford.

[22] June's full indemnity costs are $88,148.62 inclusive. By operation of rule 49, substantial indemnity is owing from July 18, 2024, and partial indemnity is owing up to July 18, 2024. The total sought by June for the entirety of the nine-year proceeding, including trial, is $74,029.04.

[23] Texford did not provide any response to the request for costs except to suggest that if June was not aware of any claim against him (as she stated during cross-examination) then it would be prejudicial if she were awarded costs. This argument is nonsensical and untenable.

[24] Texford's claim initially sought a beneficial interest in real property owned by June in which June had invested great sums of money to acquire and develop. The claim sought title to a custom built five bedroom home with detached garage, worth hundreds of thousands of dollars which was of vital importance to June given the ownership issues raised, the (initial) sums in dispute, and the legal principles surrounding the claim.

[25] However, during the trial, Texford repeatedly amended the relief sought by his claim, which became a "moving target" for the defence.

[26] By the close of argument, Texford's claim was limited to repayment of certain limited invoices alleged unpaid and a contractor's profit margin of 15% for a total claim of $50,806.41.

[27] Texford also requested a discretionary award of $25,000, but provided no authority or basis for this award. In reality, by the close of argument, Texford's claims against June were limited to approximately $50,000, falling squarely within the jurisdiction of the Small Claims Court.

[28] Had Texford considered the action prior to trial and limited his claims, costs for both sides would be extremely limited. But that is not how this litigation unfolded. Instead, June was forced to defend a serious lawsuit valued at hundreds of thousands of dollars, which after nine years and during the trial, collapsed into nothingness.

[29] Having heard and considered the entirety of the trial evidence, I am of the view that Texford's claim against June was improperly conceived and improperly pursued.

[30] The evidence at trial overwhelming established that June provided generous financial support to Texford, including providing the use of a custom-built home rented below market, and providing sufficient funds ($72,361.01) to enable him to purchase a cottage, which is now his principal residence. Additionally, June's late husband, John, trained Texford, enabled Texford to acquire his business Quinte Septic on favourable terms, and ensured that Texford would own a successful business with a healthy future income stream.

[31] Despite the litany of goodwill and benefits provided to Texford by June, for some misguided reason, three years following his separation from June's daughter, Texford determined that he would engage in senseless and unfounded litigation with June, a person whom had been kind and generous towards him.

[32] Having reviewed the various factors including time spent, complexity, offer to settle made, and results achieved, I accept June's submissions regarding costs and fix June's costs at $74,029.04.

Conclusion

[33] For the foregoing reasons I order as follows:

i. June's costs for the action are fixed at $74,029.04, inclusive, payable within 30 days of the date herein.

ii. June may file an Order reflecting the amount of costs ordered herein without the necessity of obtaining the approval of Texford. The draft Order may be sent directly to my judicial assistant for my signature, issuance, and entry.

Justice S. J. Woodley

Released: October 1, 2025